HOT PURSUIT ARRESTS – RULE 113, SECTION 5(B) OF THE REVISED RULES ON

CRIMINAL PROCEDURE

Picture this scenario: One dark, gloomy October evening, the silence of your
sleepy barangay was broken by four gunshots and a scream. Aroused by the noise,
SPO1 Eseng rushes to the house where the noises came from. The distinct smell of
gunpowder and blood permeate the rustic October air. When SPO1 Eseng arrives at the
scene of the crime, barangay tanods have already gathered on the house’s patio. They
inform him that three members of the akyat bahay gang have robbed and killed the
unfortunate owners of the house. Suddenly, a loud crash is heard, the backdoor of the
house flies through the air and four dark figures dash through the hedges behind the
house. SPO1 Eseng and the two of the tanods run after the felons.

The chase leads them to a populated street busy with night-goers. They lose sight of
the three hooded figures when they make a blind turn in aneskinita. And arising from the
darkness of the unlit alley, the law enforcers behold three men, walking calmly along the
side of the street, wearing hooded jackets similar to the ones worn by the akyat bahay
members, with their hands tucked inside their baggy pants’ pockets as if they were
hiding something. They were unable to see the faces of the cold-hearted gang
members, and the only distinct – if you can even call it distinct – characteristic that they
remember about the suspects was that they were wearing jackets. Can SPO1 Eseng
and the barangay tanods lawfully arrest the three shady characters?

Distraught in my desk, my poor undergraduate self kept wondering what Rule 113,
Section 5(b) meant by ‘personal knowledge’. It was what we law students called a
‘shotgun’ question – owing to the quick reloading mechanism of the pump-barrel
shotgun that law enforcement employs for its high stopping power – and one that our
Criminal Law professor employed effectively in his other classes. We were somewhat
fortunate to have gathered intel informing us that we would be asked about the meaning
of ‘personal knowledge’ as contemplated by Rule 113, Section 5 (a) and (b), but we had
yet to come up with a decent answer for the question.

Rule 113, Section 5, of the Rules of Court enumerates the three instances in which an
arrest can be made without a warrant. It reads:
Sec. 5. Arrest without warrant when lawful. — A peace officer or private person may,
without a warrant, arrest a person;

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has committed it;
and

(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to
another.

Paragraph A requires no further exposition. What the law meant by ‘in his presence’ is
that the arresting officer or the citizen making an arrest should have perceived by any of
his senses (6th sense not included) that a crime has been committed, and he goes to the
scene of the crime to effect the arrest. Thus when a blind person walking at 3pm across
Carriedo Street hears three gunshots coming from the right side of the road at a
distance of approximately 4 meters from his position, then the crime has been
committed in his presence. Or when a blind and deaf person perceives through his
well-trained olfactory sense that a large amount of gunpowder is present in the air, then
he knows that a crime has been committed not far from where he is standing. Clearly,
there is personal knowledge of the facts and circumstances of the crime in Paragraph
A.

But what of section B? does it speak of the same personal knowledge? Simply put,
personal knowledge pertains to “cognizance of a circumstance or fact gained directly
through firsthand experience or observation. An affidavit is a declaration based on
personal knowledge, unless expressly stated otherwise.”

In his dissent in Sayo v. Chief of Police[1], Justice Tuazon remarks:

 A police officer can seldom make arrest with personal knowledge of the
offense and of the identity of the person arrested sufficient in itself to convict. To require
him to make an arrest only when the evidence he himself can furnish proves beyond
reasonable doubt the guilt of the accused, would “endanger the safety of society.” It
would cripple the forces of the law to the point of enabling criminals, against whom
there is only moral conviction or prima facie proof of guilt, to escape. Yet persons
arrested on necessarily innocent so that the prosecuting attorney should release them.
Further and closer investigation not infrequently confirm the suspicion or information.

A wise observation indeed! For how many barangay tanods and police men are actually
on active duty, ready to respond to the cries of the helpless during the ungodly hours of
the night? Most of them are already cozy in their houses, over dosing on telenovelas, or
indulging on a grande bottle of Red Horse. Why, even at just 4 in the afternoon, one can
HARDLY see any law enforcement authorities surveying the most dangerous streets of
Manila, which is practically a haven for crimes. You judge, dear reader, from personal
experience.

In answering our question, we shall resolve to cutting the provision piece by piece. Let’s
begin with the elements of a lawful arrest under Rule 113, Section 5(b). They are:

1. That a crime has been committed

2. That the arresting officer has probable cause to make the arrest

3. That such probable cause is due to his personal knowledge of the facts
indicating that the person to be arrested has committed the crime

That a crime has been committed is a pre-condition because the law expressly
makes it so. No further questions asked. Thus, a police officer cannot make an arrest
because the shady character of a person has led him to believe that the latter might
have committed a crime. The crime must come first. The second element, probably
cause, is an “actual belief or reasonable grounds for suspicion”. It is also defined
as facts and circumstances which would lead a reasonably prudent and discreet
man to believe that a crime has been committed and that objects/person sought
in connection to the crime are located in the place sought to be searched[2]. Note
that suspicion is not the same probable cause. Suspicion is based merely on
assumption – probable cause is based on facts.

And finally, the personal knowledge of the facts. In the case of People v. Burgos, it
was held that:

The fact of the commission of the offense must be undisputed. The test of reasonable
ground applies only to the identity of the perpetrator.

Moreover, in previous cases such as People v. Tonog, Jr.[3] and and Posadas v.
Ombudsman[4] that personal knowledge of such facts may be gained by the officer
during the course of his investigation. Quoting Tonog Jr.:

“It may be that the police officers were not armed with a warrant when they
apprehended Accused-appellant. The warrantless arrest, however, was justified under
Section 5 (b), Rule 133 (sic) of the 1985 Rules of Criminal Procedure providing that a
peace officer may, without a warrant, arrest a person when an offense has in fact just
been committed and he has personal knowledge of facts indicating that the person to be
arrested has committed it. In this case, Pat. Leguarda, in effecting the arrest of
Accused-appellant, had knowledge of facts gathered by him personally in the
course of his investigation indicating that Accused-appellant was one of the
perpetrators. “

However, information simply relayed to the arresting officers is not personal

knowledge. In People v. Burgos, a certain Masamlok (I LOVE HIS NAME) informed
police authorities that the appellant was involved in subversive activities. Acting on the
strength of such information and without securing a judicial warrant, the police
proceeded to appellant’s house to arrest him. There, they also allegedly recovered an
unlicensed firearm and subversive materials. There was no personal knowledge since
the information came from dear beloved Masamlok, a civilian. At the time of Burgos’
arrest, he was not involved in subversive activities nor committing any illegal acts.

And in People v. Encinada[5], where law enforcement authorities made an arrest based
on an intelligence report that they received, stating: “appellant who was carrying
marijuana would arrive the next morning aboard M/V Sweet Pearl.” The Court
categorically stated that such “[r]aw intelligence information is not a sufficient ground for
a warrantless arrest.” And since, at the time of his arrest, no act or fact demonstrating a
felonious enterprise could be ascribed to appellant, there was no valid justification for
his arrest.

Thus, “Hot Pursuit Arrests” or those lawful arrests contemplate by Rule 113, Sec. 5(B),
as Justice Panganiban stated in his concurring opinion in People v. Florencia Doria[6]:

While the law enforcers may not actually witness the execution of acts
constituting the offense, they must have direct knowledge or view of the crime right after
its commission. They should know for a fact that a crime was committed. AND they
must also perceive acts exhibited by the person to be arrested, indicating that he
perpetrated the crime. Again, mere intelligence information that the suspect committed
the crime will not suffice. The arresting officers themselves must have personal
knowledge of facts showing that the suspect performed the criminal act. Personal
knowledge means actual belief or reasonable grounds of suspicion, based on actual
facts, that the person to be arrested is probably guilty of committing the crime.

Let me illustrate: Patrolman Fernando of the Sta Ana police precinct receives a
complaint about a stabbing incident in the Sta Ana Market. The complaint came from a
concerned tindera who witnessed the stabbing. This is the normal course of events
in a criminal investigation — the police investigators receive information in the
form of a complaint/witness testimony from a third person. The first element of a
hot pursuit: That a crime has been committed — is hearsay evidence.

However, the second and most important element — namely, the facts constituting
probable cause that the person to be arrested has committed the crime complained of
— should have been gained PERSONALLY. How is this gained? by conducting
investigations, surveillance, or perceiving acts of the accused which leads the
arresting officer to believe that he should rightfully be arrested.